59 Mass. 198

Supreme Judicial Court of Massachusetts.

SARAH C. ROBERTS

v.

THE CITY OF BOSTON.

November Term, 1849.

Opinion

SHAW, C. J.

The plaintiff, a colored child of five years of age, has commenced this action, by her father and next friend, against the city of Boston, upon the statute of 1845… which provides, that any child unlawfully excluded from public school instruction, in this commonwealth, shall recover damages therefor, in an action against the city or town, by which such public-school instruction is supported. The question therefore is whether…the plaintiff has been unlawfully excluded from such instruction.

[T]he defendants support a class of [160] schools called primary schools…for the instruction of children of both sexes, who are between the ages *205 of four and seven years. Two of these schools are appropriated by the primary school committee…to the exclusive instruction of colored children, and the residue to the exclusive instruction of white children.

The plaintiff, by her father, [attempted]…to obtain admission into one of [the] schools appropriated to white children, but…she was not admitted. Either of the schools appropriated to colored children was open to her; the nearest of which was about a fifth of a mile…[farther] from her father’s house than the nearest primary school… [T]he committee having charge of that class of schools had, a short time previously to the plaintiff’s application, adopted a resolution [mandating racially segregated schools and declaring these segregated schools to be]…not only legal and just, but…best adapted to promote the instruction of that class of the population.

**6 The…question here is confined to the primary schools alone. The plaintiff had access to a school, set apart for colored children, as well conducted in all respects, and as well fitted, in point of capacity and qualification of the instructors, to advance the education of children under seven years old, as the other primary schools; the objection is, that the schools thus open to the plaintiff are exclusively appropriated to colored children, and are at a greater distance from her home. Under these circumstances, has the plaintiff been unlawfully excluded from public school instruction? Upon the best consideration we have been able to give the subject, the court are all of opinion that she has not.

It will be considered, that this is a question of power, or of *206 the legal authority of the committee intrusted by the city with this department of public instruction; because, if they have the legal authority, the expediency of exercising it in any particular way is exclusively with them.

The great principle…is, that by the constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law. This, as a broad general principle,…is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution of free government. But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion, that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the…consideration and protection of the law, for their maintenance and security. What those rights are, to which individuals…must depend on laws adapted to their respective relations and conditions.

Conceding, therefore,…that colored persons, the descendants of Africans, are entitled by law, in this commonwealth, to equal rights, constitutional and political, civil and social, the question then arises, whether the regulation in question, which provides separate schools for colored children, is a violation of any of these rights.

Legal rights must, after all, depend upon the provisions of law; certainly all those rights of individuals which can be asserted and maintained in any judicial tribunal. The proper province of a declaration of rights and constitution of government, after directing its form, regulating its organization and the distribution of its powers, is to declare great principles and fundamental truths, to influence and direct the judgment and conscience of legislators in making laws, rather than to limit *207 and control them, by directing what precise laws they shall make. The provision, that it shall be the duty of legislatures and magistrates to cherish the interests of literature and the sciences, especially the university at Cambridge, public schools, and grammar schools, in the towns, is precisely of this character. Had the legislature failed to comply with this injunction, and neglected to provide public schools in the towns, or should they so far fail in their duty as to repeal all laws on the subject, and leave all education to depend on private means, strong and explicit as the direction of the constitution is, it would afford no remedy or redress to the thousands of the rising generation, who now depend on these schools to afford them a most valuable education, and an introduction to useful life.

**7 We must then resort to the law, to ascertain what are the rights of individuals, in regard to the schools. By the Rev. Sts. c. 23, the general system is provided for. This chapter directs what money shall be raised in different towns, according to their population; provides for a power of dividing towns into school districts, leaving it however at the option of the inhabitants to divide the towns into districts, or to administer the system and provide schools, without such division….

The statute…provides…that the inhabitants shall annually choose, by ballot, a school committee, who shall have the general charge and superintendence of all the public schools in such towns. There being no specific direction how schools shall be organized; how many schools shall be kept; what shall be the qualifications for admission to the schools; the age at which children may enter; the age to which they may continue; these must all be regulated by the committee, under their power of general superintendence….

The power of general superintendence vests a plenary authority in the committee to arrange, classify, and distribute pupils, in such a manner as they think best adapted to their general proficiency and welfare. 

***

In the absence of special legislation on this subject, the law has vested the power in the committee to regulate the system of distribution and classification; and when this power is reasonably exercised, without being abused or perverted…,the decision of the committee must be deemed conclusive. The committee, apparently upon great deliberation, have come to the conclusion, that the good of both classes of schools will be best promoted, by maintaining the separate primary schools for colored and for white children, and we can perceive no ground to doubt, that this is the honest result of their experience and judgment.

It is urged, that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence, and we cannot say, that their decision upon it is not founded on just grounds of reason and *210 experience, and in the results of a discriminating and honest judgment.

The increased distance, to which the plaintiff was obliged to go to school from her father’s house, is not such, in our opinion, as to render the regulation in question unreasonable, still less illegal.

On the whole the court are of opinion, that upon the facts stated, the action cannot be maintained.

48 S.Ct. 91

Supreme Court of the United States.

GONG LUM at al.

v.

RICE et al.

No. 29.

|

Submitted Oct. 12, 1927.

|

Decided Nov. 21, 1927.

Opinion

Mr. Chief Justice TAFT delivered the opinion of the Court.

This was a petition for mandamus filed in the state circuit court of Mississippi for the First judicial district of Bolivar county.

Gong Lum is a resident of Mississippi, resides in the Rosedale consolidated high school district, and is the father of Martha Lum. He is engaged in the mercantile business…*80 She was nine years old when the petition was filed,…and she sued by her next friend, Chew How, who is a native-born citizen of the United States and the state of Mississippi. The petition alleged that she was of good moral character, between the ages of 5 and 21 years, and that, as she was such a citizen and an educable child, it became her father’s duty under the law to send her to school; that she desired to attend the Rosedale consolidated high school; that at the opening of the school she appeared as a pupil, but at the noon recess she was notified by the superintendent that she would not be allowed to return to the school; that an order had been issued by the board of trustees, who are made defendants, excluding her from attending the school solely on the ground that she was of Chinese descent, and not a member of the white or Caucasian race, and that their order had been made in pursuance to instructions from the state superintendent of education of Mississippi, who is also made a defendant.

The petitioners further show that there is no school maintained in the district for the education of children of Chinese descent, and none established in Bolivar county where she could attend.

The Constitution of Mississippi (Const. 1890, ss 201, 206) requires that there shall be a county common school fund, made up of poll taxes from the various counties, to be retained in the counties where the same is collected, and a state common school fund to be taken from the general fund in the state treasury, which together shall be sufficient to maintain a common school for a **92 term of four months in each scholastic year…

The petition alleged that…the Legislature has provided for the establishment and for the payment of the expenses of the Rosedale consolidated high school, and that the plaintiff, Gong Lum, the petitioner’s father, is a taxpayer and helps to support and maintain the school; that Martha Lum is an educable child, is entitled to attend the school as a pupil, and that this is the only school conducted in the district available for her as a pupil; that the right to attend it is a valuable right; that she is not a member of the colored race, nor is she of mixed blood, but that she is pure Chinese; that she is by the action of the board of trustees and the state superintendent discriminated against directly, and denied her right to be a member of the Rosedale school; that the school authorities have no discretion under the law as to her admission as a pupil in the school, but that they continue without authority of law to deny her the right to attend it as a pupil. For these reasons the writ of mandamus is prayed for against the defendants, commanding them and each of them to desist from discriminating against her on account of her race or ancestry, and to give her the same rights and privileges that other educable children between the ages of 5 and 21 are granted in the Rosedale consolidated high school.

The petition was demurred to by the defendants on the ground, among others, that the bill showed on its face that plaintiff is a member of the Mongolian or yellow race, and *82 therefore not entitled to attend the schools provided by law in the state of Mississippi for children of the white or Caucasian race.

The trial court overruled the demurrer and ordered that a writ of mandamus issue to the defendants as prayed in the petition.

The defendants then appealed to the Supreme Court of Mississippi, which heard the case. Rice v. Gong Lum, 139 Miss. 760, 104 So. 105. In its opinion, it directed its attention to the proper construction of section 207 of the state Constitution of 1890, which provides:

‘Separate schools shall be maintained for children of the white and colored races.’

The court held that this provision of the Constitution divided the educable children into those of the pure white or Caucasian race, on the one hand, and the brown, yellow, and black races, on the other, and therefore that Martha Lum, of the Mongolian or yellow race, could not insist on being classed with the whites under this constitutional division.

***

The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow, or black. Were this a new question, *86 it would call for very full argument and consideration; but we think that it is the same question which has been many times decided to be within the constitutional power of the state Legislature to settle, without intervention of the federal courts under the federal Constitution. [citations omitted]

In Plessy v. Ferguson, 163 U. S. 537, 544, 545, 16 S. Ct. 1138, 1140, 41 L. Ed. 256, in upholding the validity under the Fourteenth Amendment of a statute of Louisiana requiring the separation of the white and colored races in railway coaches, a more difficult question than **94 this, this court, speaking of permitted race separation, said:

‘The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.’

The case of Roberts v. City of Boston… in which Chief Justice Shaw, of the Supreme Judicial Court of Massachusetts, announced the opinion of that court upholding the separation of colored and white schools under *87 a state constitutional injunction of equal protection, the same as the Fourteenth Amendment, was then referred to, and this court continued:

‘Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia (Rev. Stat. D. C. ss 281, 282, 283, 310, 319), as well as by the Legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts’-citing many of the cases aboved named.

Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils; but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races. The decision is within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment.

The judgment of the Supreme Court of Mississippi is affirmed.

https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf 

Justice THOMAS, concurring.

I join the opinion of the Court. I write separately to address the premise that the Due Process Clause of the Fifth Amendment contains an equal protection component whose substance is “precisely the same” as the Equal Protection Clause of the Fourteenth Amendment. [citations omitted] Although I have joined the Court in applying this doctrine [citations omitted], I now doubt whether it comports with the original meaning of the Constitution. Firmer ground for prohibiting the Federal Government from discriminating on the basis of race, at least with respect to civil rights, may well be found in the Fourteenth Amendment’s Citizenship Clause.

I

Until the middle of the 20th century, this Court consistently recognized that the Fifth Amendment “contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.” [citations omitted]. However, the Court did maintain that the Fifth Amendment’s Due Process Clause prohibited “such discriminatory legislation by Congress as amounts to a denial of due process,” i.e., legislation that would fail rational-basis review. [citations omitted]

In Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), the Court began in earnest to fold an “equal protection” guarantee into the concept of “due process.” Decided the same day as Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), Bolling confronted the constitutionality of government-imposed segregation in the District of Columbia’s public schools. Because any such segregation was attributable to Congress, [citations omitted] rather than state action, the Equal Protection Clause did not apply. Bolling instead read an equal protection principle into the Fifth Amendment’s requirement that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law.” [citations omitted]

Bolling’s locating of an equal protection guarantee in the Fifth Amendment’s Due Process Clause raises substantial questions. First, Bolling’s interpretation seemingly relies upon the Lochner-era theory *1545 that “unreasonable discrimination” is “a denial of due process of law.” [citations omitted] By invoking “due process” to hold an allegedly “unreasonable” or “arbitrary” legislative classification unconstitutional, Bolling made clear that it was applying this Court’s “substantive due process” doctrine. [citations omitted]

But “[t]he notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” [citations omitted] Rather, “ ‘considerable historical evidence supports the position that “due process of law” was a separation-of-powers concept designed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law.’ ” [citations omitted] And, to the extent that the Due Process Clause restrains the authority of Congress, it may, at most, prohibit Congress from authorizing the deprivation of a person’s life, liberty, or property without providing him the “customary procedures to which freemen were entitled by the old law of England.” [citations omitted]. Either way, the Fifth Amendment’s text and history provide little support for modern substantive due process doctrine.

To be sure, some have argued that “antebellum due process theory commonly included an equality principle” that circumscribed legislative authority. [citations omitted] But there is no historical consensus that this kind of substantive due process took hold in antebellum America. [citations omitted] And, in any event, “the pre-constitutional and Founding-era evidence regarding the meaning of ‘due process of law’ strongly suggests the phrase most likely would have been viewed in 1791 ... as guaranteeing either that duly enacted law would be followed or that certain requisite procedures would be observed.” [citations omitted] It is not clear why post-1791 developments should displace more probative preconstitutional and founding-era evidence.[citations omitted]

Second, Bolling reasoned that the “liberty” protected by the Due Process Clause covers “the full range of conduct which the individual is free to pursue,” 347 U.S. at 499–500, 74 S.Ct. 693, and therefore guaranteed freedom from segregated schooling. That understanding of “liberty” likely sweeps too broadly. Given the relevant history, “it is hard to see how the ‘liberty’ protected by the [Due Process Clause] could be interpreted to include anything broader than freedom from physical restraint.” [citations omitted] And even if “liberty” encompasses more than that, “[i]n the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular government entitlement.” [citations omitted] Consequently, if “liberty” in the Due Process Clause does not include any rights to public benefits, it is unclear how that provision can constrain the regulation of access to those benefits.

Third, although the Bolling Court claimed that its decision “d[id] not imply that [due process and equal protection] are always interchangeable phrases,” 347 U.S. at 499, 74 S.Ct. 693, its logic led this Court to later erase any distinction between them. We now maintain that the “equal protection obligations imposed by the Fifth and the Fourteenth Amendments [are] indistinguishable.” [citations omitted] But if “due process of law” fully subsumed the guarantee of equal protection, it is unclear why § 1 of the Fourteenth Amendment would redundantly state both requirements in consecutive Clauses. [citations omitted].

Fourth, Bolling asserted that because the Constitution prohibits States from racially segregating public schools, “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” 347 U.S. at 500, 74 S.Ct. 693. For one, such moral judgments lie beyond the commission of the federal courts. For another, the assertion is debatable at best. “The Constitution contains many limitations that apply only to the states, or only to the federal government, and this Court is not free to disregard those aspects of the constitutional design.” [citations omitted] Likewise, “the enactors of the Fourteenth Amendment might have reasonably believed that [an equal protection] provision was not needed against the federal government” because it “had shown itself to be a much better protector of the rights of minorities than had the states.” [citations omitted].

*1547 In sum, the text and history of the Fifth Amendment’s Due Process Clause provide limited support for reading into that provision an equal protection guarantee.

II

Even if the Due Process Clause has no equal protection component, the Constitution may still prohibit the Federal Government from discriminating on the basis of race, at least with respect to civil rights. While my conclusions remain tentative, I think that the textual source of that obligation may reside in the Fourteenth Amendment’s Citizenship Clause. That Clause provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Amdt. 14, § 1, cl. 1. As I sketch out briefly below, considerable historical evidence suggests that the Citizenship Clause “was adopted against a longstanding political and legal tradition that closely associated the status of ‘citizenship’ with the entitlement to legal equality.” [citations omitted] Thus, the Citizenship Clause could provide a firmer foundation for Bolling’s result than the Fifth Amendment’s Due Process Clause.